Common use of Termination in Connection with Change of Control Clause in Contracts

Termination in Connection with Change of Control. (a) Upon Employee’s termination of employment hereunder in those circumstances which entitle Employee to payment under the terms of the Company’s COC Severance Plan, as it may be duly amended from time to time, Employee shall be entitled to receive from the Company under the COC Severance Plan those cash amounts to be paid to Officers of the Company thereunder, plus an additional amount equal to 50% of the cash amounts provided to be paid under the Company’s COC Severance Plan to Officers of the Company, plus the benefits provided in the COC Severance Plan, including continuation of medical and dental insurance, matching 401-K plan contributions by the Company, and reimbursement of out-placement services, in each case as required to be paid under the terms of the Company’s COC Severance Plan as duly amended from time to time; (b) In the Event of a Change of Control (as defined, respectively, in the Company’s 2001 Omnibus Stock Compensation Plan or 2005 Stock Compensation Plan, or any successor or replacement equity compensation plan adopted by the Company after the date hereof and under which equity awards are made to Employee), Employee shall be entitled to the acceleration of vesting and exercisability of awards held by Employee and previously granted under the Company’s equity compensation plans which is specified in such equity compensation plans, as such plans may be duly amended from time to time, but without regard to any such plans’ exclusion from accelerated vesting or exercisability upon a Change of Control of awards outstanding for less than a specific period of time set out in such plans. (c) The additional cash payment to be made by the Company to Employee under the provisions of Section 11(a) shall be paid to Employee in a lump sum in cash on the same date as payments are made to Employee under the COC Severance Plan. (d) Notwithstanding anything to the contrary in this Agreement, in the event that any payment, distribution, or other benefit provided by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes on a Payment (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon a Payment. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Employee shall notify the Company immediately in writing of any claim by the Internal Revenue Service which, if successful, would require the Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Company and Employee) within fifteen days of the receipt of such claim. The Company shall notify Employee in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest such claim. If the Company decides to contest such claim, Employee shall cooperate fully with the Company in such action; provided, however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action. Any Gross-Up Payment pursuant to this provision shall be paid on the first business day that is at least six months after the Employee’s termination of employment. In any event, the Gross-Up Payment shall be made no later than the end of the Employee’s taxable year next following the taxable year in which the related Excise Tax is remitted to the Internal Revenue Service or any other applicable taxing authority. If, as a result of the Company’s action with respect to a claim, Employee receives a refund of any amount paid by the Company with respect to such claim, Employee shall promptly pay such refund to the Company. If the Company fails to timely notify Employee whether it will contest such claim or the Company determines not to contest such claim, then the Company shall within 10 days of such failure or determination pay to Employee the portion of such claim, if any, which it has not previously paid to Employee.

Termination in Connection with Change of Control. (a) Upon Employee’s termination of employment hereunder in those circumstances which entitle Employee to payment under the terms of the Company’s COC Severance Plan, as it may be duly amended from time to time, Employee shall be entitled to receive from the Company under the COC Severance Plan those cash amounts to be paid to Officers of the Company thereunder, plus an additional amount equal to 5025% of the cash amounts provided to be paid under the Company’s COC Severance Plan to Officers of the Company, plus the benefits provided in the COC Severance Plan, including continuation of medical and dental insurance, matching 401-K plan contributions by the Company, and reimbursement of out-placement services, in each case as required to be paid under the terms of the Company’s COC Severance Plan as duly amended from time to time; (b) In the Event of a Change of Control (as defined, respectively, in the Company’s 2001 Omnibus Stock Compensation Plan or 2005 Stock Compensation Plan, or any successor or replacement equity compensation plan adopted by the Company after the date hereof and under which equity awards are made to Employee), Employee shall be entitled to the acceleration of vesting and exercisability of awards held by Employee and previously granted under the Company’s equity compensation plans which is specified in such equity compensation plans, as such plans may be duly amended from time to time, but without regard to any such plans’ exclusion from accelerated vesting or exercisability upon a Change of Control of awards outstanding for less than a specific period of time set out in such plans. (c) The additional cash payment to be made by the Company to Employee under the provisions of Section 11(a) shall be paid to Employee in a lump sum in cash on the same date as payments are made to Employee under the COC Severance Plan. (d) Notwithstanding anything to the contrary in this Agreement, in the event that any payment, distribution, or other benefit provided by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes on a Payment (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon a Payment. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Employee shall notify the Company immediately in writing of any claim by the Internal Revenue Service which, if successful, would require the Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Company and Employee) within fifteen days of the receipt of such claim. The Company shall notify Employee in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest such claim. If the Company decides to contest such claim, Employee shall cooperate fully with the Company in such action; provided, however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action. Any Gross-Up Payment pursuant to this provision shall be paid on the first business day that is at least six months after the Employee’s termination of employment. In any event, the Gross-Up Payment shall be made no later than the end of the Employee’s taxable year next following the taxable year in which the related Excise Tax is remitted to the Internal Revenue Service or any other applicable taxing authority. If, as a result of the Company’s action with respect to a claim, Employee receives a refund of any amount paid by the Company with respect to such claim, Employee shall promptly pay such refund to the Company. If the Company fails to timely notify Employee whether it will contest such claim or the Company determines not to contest such claim, then the Company shall within 10 days of such failure or determination pay to Employee the portion of such claim, if any, which it has not previously paid to Employee.

Termination in Connection with Change of Control. (a) Upon EmployeeExecutive’s employment will be terminated by the Company without Cause effective as of May 5, 2006. Such termination shall constitute a termination of Executive’s employment hereunder without Cause following a Change of Control for purposes of this Agreement. Upon such termination, Executive shall be entitled to receive, in those circumstances lieu of any severance benefits to which entitle Employee to payment Executive may otherwise be entitled under the terms any severance plan or program of the Company’s COC Severance Plan, as it may be duly amended from the benefits provided below: (A) the Company shall pay to Executive his fully earned but unpaid base salary, when due, through the date of termination at the rate then in effect, plus all other amounts to which Executive is entitled under any compensation plan or practice of the Company at the time to time, Employee of termination; (B) Executive shall be entitled to receive from the Company under the COC Severance Plan those cash amounts to be paid to Officers of the Company thereunderseverance pay as follows: (1) on May 5, 2006, (x) $227,200 in cash, plus an additional amount equal to 50% (y) a number of the cash amounts provided to be paid under the Company’s COC Severance Plan to Officers of the Company, plus the benefits provided in the COC Severance Plan, including continuation of medical and dental insurance, matching 401fully-K plan contributions by the Company, and reimbursement of out-placement services, in each case as required to be paid under the terms vested shares of the Company’s COC Severance Plan as duly amended from time common stock equal to time; (bi) In $227,200, divided by (ii) the Event closing price of a Change of Control (as defined, respectively, in the Company’s 2001 Omnibus Stock Compensation common stock on The Nasdaq National Market on the immediately preceding trading date, plus (2) on January 1, 2007, (x) $317,800 in cash, plus (y) a number of fully-vested shares of the Company’s common stock equal to (i) $250,200, divided by (ii) the closing price of the Company’s common stock on The Nasdaq National Market on the immediately preceding trading date Any shares of the Company’s common stock to be issued to Executive pursuant to this Section 5(d)(ii)(B) shall be issued to Executive as a fully-vested stock payment pursuant to the Company’s Amended and Restated 2003 Equity Incentive Award Plan or 2005 Stock Compensation Plan, (or any successor or replacement equity compensation plan adopted maintained by the Company) and such issuance shall be expressly conditioned on compliance with all applicable laws and Executive’s payment of all applicable federal, state and local taxes required to be withheld by the Company after as a result of the date hereof and under which equity awards are made issuance of such shares. Executive may satisfy such withholding obligations by instructing the Company to Employee), Employee shall be entitled to the acceleration withhold shares of vesting and exercisability of awards held by Employee and previously granted under the Company’s equity common stock otherwise issuable to Executive pursuant to this Section 5(d)(ii)(B)(3) or by payment of such amounts in cash or reduction of other compensation plans which payable to Executive by the Company. In the event such issuance is specified in such equity compensation plansnot permitted by applicable laws as of May 5, 2006 or January 1, 2007, as applicable, then within ten (10) days following such plans may be duly amended from time to time, but without regard to any such plans’ exclusion from accelerated vesting or exercisability upon a Change of Control of awards outstanding for less than a specific period of time set out in such plans. (c) The additional cash payment to be made by the Company to Employee under the provisions of Section 11(a) shall be paid to Employee in a lump sum in cash on the same date as payments are made to Employee under the COC Severance Plan. (d) Notwithstanding anything to the contrary in this Agreement, in the event that any payment, distribution, or other benefit provided by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”)scheduled issuance date, the Company shall pay to Employee an additional Executive a cash payment (a “Gross-up Payment”) in an amount such that after payment by Employee lieu of all taxes on a Payment (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon a Payment. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Employee shall notify the Company immediately in writing of any claim by the Internal Revenue Service which, if successful, would require the Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Company and Employee) within fifteen days of the receipt of such claim. The Company shall notify Employee in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest such claim. If the Company decides to contest such claim, Employee shall cooperate fully with the Company in such action; provided, however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result shares of the Company’s actioncommon stock, less all applicable federal, state and local taxes required to be withheld by the Company. Any Gross-Up Payment pursuant to this provision shall be paid on the first business day that is at least six months after the Employee’s termination of employment. In any event, the Gross-Up Payment shall be made no later than the end of the Employee’s taxable year next following the taxable year in which the related Excise Tax is remitted to the Internal Revenue Service or any other applicable taxing authority. If, as a result shares of the Company’s action with respect common stock issued to a claim, Employee receives a refund of any amount paid Executive hereunder shall be registered by the Company on a Registration Statement of Form S-8 as of the date of issuance. (C) For the period beginning on the date of termination and ending on the date which is eighteen (18) full months following the date of termination (or, if earlier, the date on which the applicable continuation period under COBRA expires), reimburse Executive for the costs associated with respect continuation coverage pursuant to COBRA for Executive and his eligible dependents who were covered under the Company’s health plans as of the date of Executive’s termination (provided that Executive shall be solely responsible for all matters relating to his continuation of coverage pursuant to COBRA, including, without limitation, his election of such claimcoverage and his timely payment of premiums); (D) (1) For the period beginning on the date of termination and ending on February 28, Employee shall promptly 2007, pay for and provide Executive and such refund eligible dependents with life insurance benefits coverage to the extent such dependents were receiving such benefits prior to the date of Executive’s termination, and (2) on March 1, 2007, pay Executive an amount in cash equal to the premiums required to maintain the life insurance benefits coverage described in clause (1) above through the date which is eighteen (18) full months following the date of termination; (E) Executive shall be entitled to executive-level outplacement services at the Company. If the Company fails to timely notify Employee whether it will contest such claim or the Company determines ’s expense, not to contest such claim, then the Company shall within 10 days of such failure or determination pay to Employee the portion of such claim, if anyexceed $15,000, which it has not previously paid to Employeeservices shall be provided no later than March 15, 2007. Such services shall be provided by a firm selected by Executive from a list compiled by the Company; and (F) Upon Executive’s termination of employment on May 5, 2006, Executive shall receive the payments and benefits described in Section 5(d)(ii) and Section 5(d)(i) shall be inapplicable.”